An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in accordance with 

the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA15-266

Filed: 20 October 2015

Mecklenburg County, Nos. 13 CRS 30542, 214471-73

STATE OF NORTH CAROLINA

v.

JAMARIO JERMAINE MCCLURE

Appeal by Defendant from judgment entered 8 August 2014 by Judge C. 

Thomas Edwards in Mecklenburg County Superior Court. Heard in the Court of 

Appeals 23 September 2015.

Attorney General Roy Cooper, by Assistant Attorney General Bethany A. 

Burgon, for the State.

Glover & Petersen, P.A., by Ann B. Petersen, for Defendant.

STEPHENS, Judge.

In this appeal, Defendant presents two issues for our consideration: (1) 

whether the removal of a robbery victim was sufficiently separate and distinct from 

that crime so as to support an additional charge of second-degree kidnapping, and (2) 

whether a jury instruction on the doctrine of recent possession of stolen property was 

warranted. After careful review, we answer both questions in the affirmative, and, 

accordingly, we find no error in the trial of Defendant Jamario Jermaine McClure.
STATE V. MCCLURE

Opinion of the Court

- 2 -

Factual and Procedural History

On the morning of 5 November 2012, Malik Douglas was asleep in the home at 

1115 Greenleaf Avenue in Charlotte where he lived with his stepfather and mother, 

Roslyn McClendon. Douglas, an eleventh-grade student who had been suspended 

from school, was the only person in the home after his mother left for work about 7:30 

a.m. A little after 8:30 a.m., Douglas was awakened by a noise. After discovering 

that there was no one at the front door, Douglas noticed a light on in his mother’s 

room. When he investigated, Douglas discovered a man going through his mother’s 

belongings. When Douglas asked what the man was doing, he responded that he was 

a friend of Douglas’ mother and that she had invited him to the house. Douglas left 

his mother’s room and headed down the hall, intending to call the police. When 

Douglas looked back, he saw the intruder pointing a gun at him. The man forced 

Douglas to his own bedroom and demanded all of the phones and money Douglas had. 

After obtaining a cell phone, a landline telephone, and about $40 or $50 from Douglas, 

the man asked whether there were any illegal drugs in the home. When Douglas told 

the man there were not, he forced Douglas back into McClendon’s room where 

Douglas noticed a black bag that contained, inter alia, his mother’s Coach pocketbook. 

The intruder told Douglas to lie face down on the floor. After Douglas complied, the 

man ran out of the house through the front door. Douglas borrowed a cell phone from 

a neighbor and called 911.
STATE V. MCCLURE

Opinion of the Court

- 3 -

Charlotte-Mecklenburg Police Department (“CMPD”) officers responded to the 

call. Douglas described the intruder as a 25-year-old black man about 5 feet 11 inches 

tall with long deadlocked hair past his shoulders, a dark complexion, and gold teeth. 

CMPD crime scene investigators discovered a broken window in McClendon’s room 

and took fingerprints from the scene. When she arrived home, McClendon discovered 

that her laptop computer and jewelry were missing, including her 1990 class ring 

from East Mecklenburg High School. A few days later, CMPD Detectives Stephen 

Todd and Michael Peacock showed Douglas a photo lineup of six black men, one of 

whom was a possible suspect, but Douglas was not able to identify the intruder. 

On 10 April 2013, CMPD Detective David Dickinson discovered information in 

a database of pawnshop sales that someone using McClure’s driver’s license as 

identification sold jewelry, including McClendon’s class ring, to Brownlee Jewelers 

on 5 November 2012 just after 1:00 p.m. Based upon this information, on 12 April 

2013, warrants were issued for McClure’s arrest. CMPD officers failed to locate 

McClure at his mother’s home, but McClure later called the CMPD and agreed to 

turn himself in. When McClure arrived at the police department, he was arrested, 

given his Miranda warnings, and interrogated. McClure waived his Miranda rights 

and admitted having sold the jewelry to Brownlee Jewelers. However, McClure 

explained that he bought the jewelry for $60 cash and some marijuana from a man 
STATE V. MCCLURE

Opinion of the Court

- 4 -

he met on the street. Detective Todd put together a new photo lineup that included 

a photograph of McClure. Douglas identified McClure as the intruder.

On 29 April 2013, the grand jury returned indictments charging McClure with 

robbery with a dangerous weapon, second-degree kidnapping, and breaking and 

entering with the intent to commit a felony therein. On 29 July 2013, McClure was 

indicted for having attained the status of an habitual felon. The cases came on for 

trial at the 4 August 2013 criminal session of Mecklenburg County Superior Court. 

After the jury returned guilty verdicts on the criminal charges, McClure entered a 

plea admitting his status as an habitual felon. The trial court consolidated all of the 

verdicts into a single judgment and sentenced McClure to 88 to 118 months in prison. 

McClure gave notice of appeal in open court.

Discussion

McClure argues that the trial court erred in (1) denying his motion to dismiss 

the kidnapping charge for insufficiency of the evidence, and (2) instructing the jury 

on the doctrine of recent possession of stolen property. We find no error.

I. Motion to dismiss the kidnapping charge

McClure first argues that the trial court erred in denying his motion to dismiss 

the kidnapping charge for insufficiency of the evidence. We disagree.

“This Court reviews the trial court’s denial of a motion to dismiss de novo.” 

State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). 
STATE V. MCCLURE

Opinion of the Court

- 5 -

“Upon [a] defendant’s motion for dismissal, the question for the Court is whether 

there is substantial evidence (1) of each essential element of the offense charged, or 

of a lesser offense included therein, and (2) of [the] defendant’s being the perpetrator 

. . . . If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 

S.E.2d 451, 455 (citation and internal quotation marks omitted), cert. denied, 531 

U.S. 890, 148 L. Ed. 2d 150 (2000). “Substantial evidence is such relevant evidence 

as a reasonable mind might accept as adequate to support a conclusion.” State v. 

Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980) (citations omitted). “In making 

its determination, the trial court must consider all evidence admitted, whether 

competent or incompetent, in the light most favorable to the State, giving the State 

the benefit of every reasonable inference and resolving any contradictions in its 

favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation omitted), 

cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).

Under our General Statutes, 

[a]ny person who shall unlawfully confine, restrain, or 

remove from one place to another, any other person 16 

years of age or over without the consent of such person . . . 

shall be guilty of kidnapping if such confinement, restraint 

or removal is for the purpose of . . . [f]acilitating the 

commission of any felony or facilitating flight . . . following 

the commission of a felony. . . .
STATE V. MCCLURE

Opinion of the Court

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N.C. Gen. Stat. § 14-39(a)(2) (2013). “If the person kidnapped was released in a safe 

place by the defendant and had not been seriously injured or sexually assaulted, the 

offense is kidnapping in the second degree.” Id. § 14-39(b). 

The term “restrain,” while broad enough to include a 

restriction upon freedom of movement by confinement, 

connotes also such a restriction, by force, threat or fraud, 

without a confinement. Thus, one who is physically seized 

and held, or whose hands or feet are bound, or who, by the 

threatened use of a deadly weapon, is restricted in his 

freedom of motion, is restrained within the meaning of this 

statute. 

State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). 

Noting the double jeopardy implication, our Supreme Court has held “that 

[section] 14-39 was not intended by the Legislature to make a restraint, which is an 

inherent, inevitable feature of such other felony, also kidnapping so as to permit the 

conviction and punishment of the defendant for both crimes.” Id. Accordingly, the 

restraint required to prove kidnapping must be “separate and apart from that which 

is inherent in the commission of the other felony.” Id.

On the other hand, it is well established that two or more 

criminal offenses may grow out of the same course of 

action, as where one offense is committed with the intent 

thereafter to commit the other and is actually followed by 

the commission of the other . . . . In such a case, the 

perpetrator may be convicted of and punished for both 

crimes. Thus, there is no constitutional barrier to the 

conviction of a defendant for kidnapping, by restraining his 

victim, and also of another felony . . . , provided the 

restraint, which constitutes the kidnapping, is a separate, 
STATE V. MCCLURE

Opinion of the Court

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complete act, independent of and apart from the other 

felony.

Id. at 523-24, 243 S.E.2d at 351-52. For example, in a case where the defendants 

kidnapped a woman in a parking lot and forced her into nearby woods where she was 

raped, our Supreme Court held:

Removal of [the victim] from her automobile to the location 

where the rape occurred was not such asportation as was 

inherent in the commission of the crime of rape. Rather, it 

was a separate course of conduct designed to remove her 

from the view of a passerby who might have hindered the 

commission of the crime. To this extent, the action of 

removal was taken for the purpose of facilitating the felony 

of first-degree rape. Thus, [the] defendant’s conduct fell 

within the purview of [section] 14-39 and the evidence was 

sufficient to sustain a conviction of kidnapping under that 

section.

State v. Newman, 308 N.C. 231, 239-40, 302 S.E.2d 174, 181 (1983).

At the close of the State’s evidence in this case, McClure moved to dismiss all 

charges. The trial court denied that motion, and, after McClure rested his case 

without offering any evidence, he again moved to dismiss all charges. Again, the trial 

court denied the motion. McClure then made an additional motion to dismiss the 

kidnapping charge, contending there was insufficient evidence of restraint beyond 

that inherent and inevitable in the commission of a robbery. The trial court denied 

that motion.

On appeal, McClure contends the latter denial was error because his removal 

of Douglas at gunpoint from Douglas’ mother’s room to Douglas’ bedroom and back 
STATE V. MCCLURE

Opinion of the Court

- 8 -

again “was a mere technical asportation and insufficient to support conviction for a 

separate kidnapping offense[,]” citing State v. Irwin, 304 N.C. 93, 103, 282 S.E.2d 

439, 446 (1981), to support his argument. In Irwin, one of two men who were 

attempting to rob a drugstore “forced [an employee] at knifepoint to walk from her 

position near the fountain cash register to the back of the store in the general area of 

the prescription counter and safe.” Id. Our Supreme Court held that the “removal to 

the back of the store was an inherent and integral part of the attempted armed 

robbery” because, “[t]o accomplish [the] defendant’s objective of obtaining drugs it 

was necessary that [one of the two store employees present] go to the back of the store 

to the prescription counter and open the safe.” Id.

McClure also relies heavily on the removal of the victims in State v. Payton, 

198 N.C. App. 320, 679 S.E.2d 502 (2009), as being analogous to his walking Douglas 

up and down the hall in his case. In Payton, two women

were ordered at gunpoint to move from the “bathroom area”

to the bathroom and to maintain a submissive posture, but 

neither was bound or physically harmed. After being 

questioned about where money could be located in the 

house, the door to the bathroom was closed. The women 

were in the bathroom for ten to fifteen minutes total while 

the three men completed the robbery.

Id. at 328, 679 S.E.2d at 507. This Court held that “the movement of the women from 

the ‘bathroom area’ to the bathroom was a ‘technical asportation,’ such as seen in 

Irwin,” noting that previous cases had established that
STATE V. MCCLURE

Opinion of the Court

- 9 -

requiring the victims to lie on the floor while the robbery is 

taking place does not place the victims in greater danger 

than the robbery itself. Unlike [in State v.] Davidson, the 

victims in this case were not confined in another room in 

order to keep passersby from hindering the commission of 

the crime.”

Id. (emphasis added). 

We find Irwin and Payton distinguishable. Although the removal of Douglas 

to his bedroom, where McClure forced Douglas to give him money and phones, was 

integral to McClure’s commission of that portion of the robbery, McClure’s removal 

of Douglas back to his mother’s room and his forcing Douglas to lie down on the floor 

and not move were not. At that point, McClure had already robbed Douglas of the 

money and phones and had already filled the black bag with McClendon’s pocketbook 

and jewelry. Thus, unlike the removal in Payton, which took place during the 

commission of the robbery, the removal of Douglas to McClendon’s room where he 

was forced to lie on the floor occurred after the robbery. We find the removal here 

more analogous to that in State v. Davidson, where

the perpetrators, including [the] defendant, forced the 

victims at gunpoint to walk from the front of the store some 

thirty to thirty-five feet to a dressing room in the rear 

where they bound them with tape and robbed both them 

and the store. Since none of the property was kept in the 

dressing room, it was not necessary to move the victims 

there in order to commit the robbery. Removal of the 

victims to the dressing room thus was not an inherent and 

integral part of the robbery. Rather, as in Newman, it was 

a separate course of conduct designed to remove the victims 

from the view of passersby who might have hindered the 
STATE V. MCCLURE

Opinion of the Court

- 10 -

commission of the crime. The evidence thus was sufficient 

under [section] 14-39 to sustain the kidnapping 

convictions, and the court properly denied [the] defendant’s 

motion to dismiss the kidnapping charges.

77 N.C. App. 540, 543, 335 S.E.2d 518, 520, disc. review denied and appeal dismissed, 

314 N.C. 670, 337 S.E.2d 583 (1985), disc. review denied, 315 N.C. 393, 338 S.E.2d 

882 (1986). McClure’s removal of Douglas to lie on the floor of McClendon’s room was 

not necessary to the commission of the crime, but rather served to prevent anyone 

from hindering McClure. For example, Douglas could have left the home to seek help 

or followed McClure as he fled in order to report his vehicle or route of escape. In 

sum, because the removal of Douglas to McClendon’s room “was not an inherent and 

integral part of the robbery[, but r]ather, . . . was a separate course of conduct 

designed to” prevent interference with the commission of the crime, “[t]he evidence 

thus was sufficient under [section] 14-39 to sustain the kidnapping conviction[.]” See 

id. The trial court did not err in denying McClure’s motion to dismiss the kidnapping 

charge, and, accordingly, this argument is overruled.

II. Jury instruction on recent possession of stolen property

McClure also argues that the trial court erred in instructing the jury, over his 

objection, on the doctrine of recent possession of stolen property. Specifically, 

McClure contends that he presented a reasonable explanation for his possession of 

McClendon’s class ring and other stolen items sold to the pawnshop on the day of the 
STATE V. MCCLURE

Opinion of the Court

- 11 -

robbery so as to overcome any presumption about his possession of those recently 

stolen goods. We disagree.

“[Arguments] challenging the trial court’s decisions regarding jury instructions 

are reviewed de novo by this Court.” State v. Osorio, 196 N.C. App. 458, 466, 675 

S.E.2d 144, 149 (2009) (citations omitted). “The prime purpose of a court’s charge to 

the jury is the clarification of issues, the elimination of extraneous matters, and a 

declaration and an application of the law arising on the evidence.” State v. Cameron, 

284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973) (citations omitted), cert. denied, 418 

U.S. 905, 41 L. Ed. 2d 1153 (1974). “[A] trial judge should not give instructions to the 

jury which are not supported by the evidence produced at the trial.” Id. (citations 

omitted). “Where jury instructions are given without supporting evidence, a new trial 

is required.” State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995) (citation 

omitted).

“It is the general rule in this State that one found in the unexplained 

possession of recently stolen property is presumed to be the thief.” State v. Raynes, 

272 N.C. 488, 491, 158 S.E.2d 351, 353 (1968). 

In order for the doctrine [of recent possession] to be 

invoked, the State must prove beyond a reasonable doubt 

that: (1) the property is stolen; (2) it was found in the 

defendant’s custody and subject to his control and 

disposition to the exclusion of others; and (3) the possession 

was recently after the unlawful taking.
STATE V. MCCLURE

Opinion of the Court

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State v. Wilson, 313 N.C. 516, 535, 330 S.E.2d 450, 463 (1985) (citations omitted). 

“This is a factual presumption and is strong or weak depending on circumstances—

the time between the theft and the possession, the type of property involved, and its 

legitimate availability in the community.” Raynes, 272 N.C. at 491, 158 S.E.2d at 

353-54.

In Raynes, for example, our Supreme Court explained that

[t]he possession of an unmarked carton of Camel 

cigarettes, even in a short time after cigarettes have been 

stolen, in the absence of some further identification, will 

not be as strong as the possession of a recently stolen 

pillowcase, a three-strand pearl necklace, a diamond 

wedding band, a Hamilton watch, and a Norelco electric 

razor, and several hundred dollars in nickels, dimes, 

quarters and half-dollars. The possession of these stolen 

articles on Sunday morning following a breaking on the 

previous afternoon presents a strong case of circumstantial 

evidence.

Id. at 491, 158 S.E.2d at 354. 

On the other hand,

[t]he inference which arises from the possession of recently 

stolen goods may be overcome by the presentation of a 

reasonable explanation for the possession of the goods.

However, the issue of whether a reasonable explanation 

has been given must be decided by the jury. The apparent 

reasonableness of the explanation does not take the 

question from the jury nor does it necessarily lead to an 

acquittal.

State v. Earley, 38 N.C. App. 361, 363, 247 S.E.2d 796, 797-98 (1978) (citations 

omitted). In Earley, the defendant argued that the trial court erred in denying his 
STATE V. MCCLURE

Opinion of the Court

- 13 -

motion to dismiss because he had “presented sufficient evidence to overcome the 

presumption or inference of guilt created by the doctrine of recent possession.” Id. at 

363, 247 S.E.2d at 797. This Court held that 

the reasonableness of the defendant’s explanation for his 

possession of the recently stolen goods was an issue for the 

jury. As there was sufficient evidence to justify a finding 

by the jury that the defendant was in possession of recently 

stolen goods, the jury was entitled to draw the inference 

that the defendant had stolen the goods in question. 

Id. at 364, 247 S.E.2d at 798. Nothing in that case suggested that the trial court 

erred in instructing the jury on the doctrine of recent possession.

McClure cites State v. Anderson, 162 N.C. 571, 572, 77 S.E. 238, 238 (1913), 

for the proposition that it is error for a trial court to instruct the jury on the doctrine 

of recent possession where the defendant offers a reasonable explanation of his 

possession of the recently stolen property. We find that case distinguishable. 

In Anderson, 

the court charged the jury as follows: “The law is that 

whenever a person is found in possession of property which 

has been stolen and recently after the theft, the law 

presumes that the person so found in possession is the one 

who has stolen the property, and this presumption is 

strong or weak according to the length of time which has 

passed between the time of the stealing and the time the 

said property is found in his possession, and the burden 

then shifts to the person so found in possession to show, not 

beyond a reasonable doubt, but to the satisfaction of the 

jury, that he came by the property in a lawful manner, and 

thus rebut such presumption.”
STATE V. MCCLURE

Opinion of the Court

- 14 -

Id. (emphasis added). In reviewing that instruction, our Supreme Court held that

when there are facts in evidence which would afford 

reasonable explanation of such possession, consistent with 

defendant’s innocence, and which, if accepted, do explain it 

satisfactorily, the correct rule does not require the 

defendant to satisfy the jury that his evidence in 

explanation is true. But in such case, stating the law as to 

the presumption arising from recent possession, the court 

should tell the jury that if the testimony offered in 

explanation raises a reasonable doubt of guilt [the] 

defendant is entitled to acquittal. 

Id. at 574-75, 77 S.E. at 239. In other words, the instructions were faulty in that they 

directed the jury that (1) someone found in possession of recently stolen property (2) 

is presumed to be the thief (3) without consideration of the reasonableness of any 

explanation offered by the defendant for his possession of the stolen property. See id.

Here, in contrast, the trial court instructed the jury:

The State seeks to establish the Defendant’s guilt by the 

doctrine of recent possession. For this doctrine to apply, 

the State must prove three things beyond a reasonable 

doubt. First, that property was stolen. Second, that the 

Defendant had possession of that property. A person 

possesses property when that person is aware of its 

presence and has both the power and intent to control its 

disposition or use. And third, that the Defendant had 

possession of the property so soon after it was stolen, and 

under such circumstances as to make it unlikely that the 

Defendant gained possession honestly. 

If you find these three things from the evidence, beyond a 

reasonable doubt, you may consider them, together with all 

other facts and circumstances, in deciding whether or not 

the Defendant is guilty of robbery or breaking or entering.
STATE V. MCCLURE

Opinion of the Court

- 15 -

(Emphasis added). Unlike the instruction held to be error in Anderson, the trial court 

here did not tell the jury that the law presumes McClure stole the jewelry simply 

because he possessed it shortly after it was stolen and without any consideration of 

the reasonableness of his explanation regarding possession. Rather, the trial court 

explicitly told the jury that it must consider, not only whether the jewelry was stolen, 

whether McClure possessed it, and the length of time between the theft and his 

possession, but also whether the circumstances of McClure’s possession “ma[d]e it 

unlikely that the Defendant gained possession honestly.” Thus, unlike in Anderson, 

the trial court did not shift the burden onto McClure to prove his possession was 

lawful in order to rebut a presumption that he was the thief. Instead, the trial court 

properly instructed the jury that it must consider the circumstances of McClure’s 

possession of the stolen property, beyond simply the timing, in order to determine the 

likelihood that his possession was lawful. 

In sum, none of the case law cited by McClure suggests that it is error for a 

trial court to give an instruction on recent possession simply because the defendant 

has offered an explanation to explain his possession of recently stolen goods. 

Accordingly, McClure’s argument to the contrary is overruled.

NO ERROR.

Judges MCCULLOUGH and ZACHARY concur.

Report per Rule 30(e).